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TMI Blog2022 (3) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (b) of Section 30(2) of the Code, the applicant has certified in Form H that Part-II, clause 2 read with Part-III of the Resolution Plan provides for the payment of the debts of operational creditors which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the Corporate Debtor under Section 53 - In terms of Section 30(2)(c), management of the affairs and control of the business of the Corporate Debtor has been provided in clause 5.1 Part-II, page 22 of the Resolution Plan. The next requirement envisaged by Section 30(2)(d) is that it must provide for the implementation and supervision of the Resolution Plan. Clause 5.1.1 Part-II of the Resolution Plan provide for the Monitoring Committee consisting of equal representation of FC, RA and Resolution Professional - Ld. Counsel appearing for the Resolution Applicant submitted that the Resolution Plan is as per the provisions contained in the Code and so, the same may be approved. In terms of Regulation 39(4) of the CIRP Regulations, the Resolution Professional has filed compliance certificate in Form-H which is annexed as Annexure-A-9 at page 139. It has been submitted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatt was appointed as Resolution Professional. 5. Subsequently, in the last meeting of CoC held on 23.11.2020, the members of CoC and applicant were informed about revised offers of the Resolution Applicant and it was also informed that only one Resolution Applicant was allowed to revise its offer. 6. The case of the applicant, Mr. Nitin Gupta is that the applicant raised an objection against one resolution applicant, Jagriti Plastics Limited on 22.11.2020, on which the Resolution Professional replied that no such opportunity was granted, but as per the documents the offered amount was enhanced in proposed Resolution Plan of Jagriti Plastics Limited, whereas it is seen that earlier the amount proposed for Operational Creditors was ₹ 30 lacs which is enhanced to ₹ 91 lacs. 7. Applicant also raised objection to the resolution plan of Jagriti Plastics Limited in respect of clause 4.17.1, which deals with recovery on account of Section 66, 43, 45 etc. which has been claimed by Jagriti Plastics Limited, in that case Jagriti Plastics Limited will get the Corporate Debtor free. 8. The applicant also pointed out that Jagriti Plastics Limited is also an operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that as per clause 1.13, it has been clarified that any amount received from the avoidance application shall be vested in Corporate Debtor only. The funds of the corporate debtor were siphoned off by the suspended directors and as per law the same should be refunded in the accounts of the corporate debtor only. Reply of Respondent No. 2: i. That subsequent to receiving the last and final resolution plans Resolution Professional had sent an email dated 03.11.2020 (sic) to the Committee of Creditors and all the RA's namely M/s. Mahima Life Sciences Private Limited, Puneet Iron Steel Private Limited, M/s. Laul's Limited and Jagriti Plastics Limited, whereby RP acknowledge the receipt of Resolution Plans submitted by the resolution applicants. ii. It is submitted that on 06.11.2020 when all the 4 resolution plans filed by Respondent No. 3 to 6 were discussed it has been noticed that excess amounts were proposed to be paid to Financial Creditor, Canara Bank in all resolutions plans and all resolution applicants were advised to revise their plans and use this amount for payment to the operational creditors instead. So, equal opportunities were given to all Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said clause automatically will outcast the respondent No. 3 and will be favourable to respondent No. 6, Jagriti Plastics Limited. e. Criteria V - Term of resolution plan (weightage 50%-5 marks)- it is reiterated that in case of upfront payment how the marks under this criterion will be dealt with. f. Criteria VI - experience of promoters of resolution applicants in same line of business- (weightage 250%-25)- it is submitted that the resolution professional again invited resolution plans from previous Resolution Applicants only, knowing the fact that only Jagriti Plastics Limited has previous experience in same line of business. iii. That apart the Respondent No. 3 has also raised objections in respect of guidelines for submission of resolution plan. It has been pointed put that as per guidelines no further opportunity to revise the resolution plan is to be given to any resolution applicant and Jagriti Plastics Limited was favoured by resolution professional in revising its plan. iv. It has been mentioned that upon asking the resolution professional failed to provide reasons for rejection of proposed resolution plan of the respondent No. 3. Reply of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproved plan has been now been amended by the Resolution Applicant which now read as follows: 1.13. all amounts received by the Corporate Debtor pursuant to the exercise of powers and obligations by the Resolution professional under Section 43 to 51 (both inclusive) and Section 66 of the Code ( Avoidance Transaction Amount ) shall be utilised in payment of the outstanding amounts of the operational creditors subsequent to settlement as per Schedule-IV (OC Settlement Amount) and any amounts in excess thereof shall be vested in the Corporate Debtor, subject to any orders passed by the NCLT 15. The Resolution Applicant M/s. Jagriti Plastics Limited has also submitted the same vide affidavit dated 25.01.2022. In view of the above now the said amount will be utilized for payments of the operational creditors, therefore, the objection raised by the applicant does not survive. 16. Resultantly, the I.A. 265/ND/2021 stands rejected, with no order as to costs. I.A. 85/ND/2021 17. The facts mentioned in brief in I.A. 85/ND/2021 are as follow: a. The Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor, Proactive Plast Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e RAs to submit resolution plan by 01.11.2020. The RP received following Plans: i) Mahima Life Science Pvt. Ltd. ii) Puneet Iron Steel Pvt. Ltd. iii) Lauls Ltd. iv) Jagriti Plastics Limited. g. It is stated that in 13th meeting of CoC held on 23.11.2020 the resolution plans were discussed in details and as per voting results obtained on 02.12.2020 the Resolution Plan of M/s. Jagriti Plastics Limited was approved with 100% voting shares by CoC. h. It is submitted that the successful resolution applicant has submitted an undertaking under Regulation 39(1)(c) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP regulations) that every information and records provided in connection with or in the resolution plan is true and correct and discovery of false information and record at any time will render the applicant ineligible to continue in the corporate insolvency resolution process, forfeit any refundable deposit, and attract penal action under the Code. The Applicant has also submitted that the Successful Resolution Applicant has submitted an affidavit of eligibility under section 29A of the Code. i. It is stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount to be paid to such creditors in accordance with sub-section (1) of section 53 in the event of a liquidation of the corporate debtor. Explanation 1. -- For removal of doubts, it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors. Explanation 2. -- For the purpose of this clause, it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2019, the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor- (i) where a Resolution Plan has not been approved or rejected by the Adjudicating Authority; (ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not time barred under any provision of law for the time being in force; or (iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a Resolution Plan;] (c) provides for the management of the affairs of the Corporate debtor after approval of the Resolution Plan; (d) The implementation and supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Plan is as per the provisions contained in the Code and so, the same may be approved. In terms of Regulation 39(4) of the CIRP Regulations, the Resolution Professional has filed compliance certificate in Form-H which is annexed as Annexure-A-9 at page 139. It has been submitted in the application and in Form H duly certified by Resolution Professional that the final Resolution Plan meets the requirements as laid down in various clauses of Section 30(2) of the Code. 27. As a sequel to aforesaid discussions, we are satisfied that all the requirements of Section 30(2) are fulfilled. In respect of compliances regarding CIRP Regulations especially Regulations 38 and 39, the Resolution Professional has certified in Form-H and explained in details that the Resolution Plan has complied with all the required Regulations. 28. For the reasons discussed above, in our considered view, the Resolution Plan fulfils the requirement as referred in Section 30(2) of the Code and there are sufficient provisions in the Plan for its effective implementation as required under the proviso of Section 31(1) of the Code. The Resolution Plan has been approved by CoC with 100% favourable voting. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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